Beyond Constitutionalism

The Pluralist Structure of Postnational Law

Nico Krisch

Description

Under pressure from globalization, the classical distinction between domestic and international law has become increasingly blurred, spurring demand for new paradigms to construe the emerging postnational legal order. The typical response of constitutional and international lawyers as well as political theorists has been to extend domestic concepts - especially constitutionalism - beyond the state. Yet as this book argues, proposals for postnational constitutionalism not only fail to provide a plausible account of the changing shape of postnational law but also fall short as a normative vision. They either dilute constitutionalism's origins and appeal to 'fit' the postnational space; or they create tensions with the radical diversity of postnational society.

This book explores an alternative, pluralist vision of postnational law. Pluralism does not rely on an overarching legal framework but is characterized by the heterarchical interaction of various suborders of different levels - an interaction that is governed by a multiplicity of conflict rules whose mutual relationship remains legally open. A pluralist model can account for the fragmented structure of the European and global legal orders and it reflects the competing (and often equally legitimate) claims for control of postnational politics. However, it typically provokes concerns about stability, power, and the rule of law.

This book analyzes the promise and problems of pluralism through a theoretical enquiry and empirical research on major global governance regimes, including the European human rights regime, the contestation around UN sanctions and human rights, and the structure of global risk regulation. The empirical research reveals how prevalent pluralist structures are in postnational law and what advantages they possess over constitutionalist models. Despite the problems it also reveals, the analysis suggests cautious optimism about the possibility of stable and fair cooperation in pluralist settings.

Beyond Constitutionalism

The Pluralist Structure of Postnational Law

Nico Krisch

Table of Contents

Introduction: The Challenge of Constructing a Postnational Public LawPart I: The Constitutionalist Paradigm 1. Constitutionalism and the Quest for Unity2. The Value of Unity in Constitutional TheoryPart II: The Pluralist Landscape of Postnational Public Law 3. The Fragmented "Constitution" of the European Union4. The Open Structure of European Human Rights Law5. Pluralism in Global GovernancePart III: Pluralism versus Constitutionalism 6. The Limits of Constitutionalist Models7. The Case for Pluralism8. Problems of Pluralism in Postnational Public LawConclusion: Postnational Pluralism and Beyond

Beyond Constitutionalism

The Pluralist Structure of Postnational Law

Nico Krisch

Author Information

Nico Krisch is a Professor of International Law at the Hertie School of Governance in Berlin, where he moved in 2009 after being a Senoat the Law Department of the London School of Economics and Political Science. Previously, he held research positions at Merton College, Oxford, NYU Law School and the Max Planck Institute for International Law in Heidelberg. He is the author of Selbstverteidigung und kollektive Sicherheit (Self-defense and Collective Security, 2001), a co-editor of The Emergence of Global Administrative Law (Law & Contemporary Problems, 2005), and of articles on United Nations law, on hegemony in international law, and on the legal order of global governance. He is also a member of the Executive Board of the European Society of International Law.

Beyond Constitutionalism

The Pluralist Structure of Postnational Law

Nico Krisch

Reviews and Awards

"Reviewing this book has been an enormously edifying experience...[The] book...explores important ideas and suggests new ways forward." --Modern Law Review

"Nico Krisch has written one of the most lucid and circumspect contributions, which is likely to show significant repercussions in the field...In sum, Nico Krisch has written a truly wonderful book." --Ingo Venzke, International Law and Politics

"This ambitious book provides an extraordinarily lucid analysis of many of the most important and difficult issues of contemporary global governance as well as an original and provocative case for one position in these debates. Pluralism's critics and advocates alike will benefit from sustained engagement with Krisch's rich and sophisticated arguments. Beyond Constitutionalism represents a significant contribution to an extremely important set of questions, and it is essential reading for all who wish to better understand emerging forms of global governance." -- Jeffrey L. Dunoff, The American Journal of International Law